State v. Doyle

298 Or.App. 712

450 P.3d 29

STATE of Oregon, Plaintiff-Respondent,

v.Eric Paul DOYLE, Defendant-Appellant.

A160738

Court of Appeals of Oregon.

Argued and submitted July 31, 2018.

August 7, 2019

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

ORTEGA, P. J.

Defendant appeals his conviction for first-degree sexual abuse, ORS 163.427, assigning error to the trial court’s ruling that defendant was precluded from confronting the victim, F, at trial with evidence that she had previously falsely accused others of sexual abuse. He contends that our decision in State v. LeClair , 83 Or. App. 121, 730 P.2d 609 (1986), provides him with the right, under the state and federal confrontation clauses, to cross-examine F given the evidence that she had made prior false accusations. The state asserts that the trial court correctly applied LeClair to preclude such questioning. Under LeClair , 83 Or. App. at 130-31, 730 P.2d 609, if there is some evidence from which the court could find that the victim had made a false accusation of past sexual abuse, the court must balance whether the probative value of that evidence is "substantially outweighed by the risk of prejudice, confusion, embarrassment or delay." Because the court’s findings are supported by evidence and because the court did not abuse its discretion in balancing probative value with potential for prejudice and confusion, we affirm.¹

The pertinent facts are undisputed and largely procedural. The charges underlying the conviction involve alleged sexual abuse of then eight-year-old F. On the night of the alleged abuse, F, members of her family, and defendant, a friend of F’s mother and stepfather, attended an evening basketball game at a middle school. During the game, defendant and F went to a classroom, where defendant allegedly showed F sexually explicit videos on his phone and then put his hand underneath her clothing and touched her vagina. Video surveillance footage established that defendant and F were in the classroom together for about 28 minutes.

Before trial, the state sought to preclude defendant from confronting F with evidence that she had previously made several false accusations of sexual abuse, and the court held a hearing outside the presence of the jury to evaluate that evidence. In particular, defendant sought to cross-examine F about prior accusations of sexual abuse against her brothers, father, and stepfather.² Defendant argued that, in accordance with the criteria for admission under LeClair , (1) F had recanted the accusations against her father and brothers; (2) there was "some evidence" that the accusations against her brothers, father, and stepfather were false; and (3) the evidence is highly probative as to F’s credibility, and questioning F would be sufficiently simple in that it would not cause jury confusion or create unnecessary delay. Defendant contended that, "as a practical matter," the case "probably [fell] most clearly under the third prong"—the "some evidence" balancing test—of LeClair , rather than the recantation prong.

The state maintained that the evidence "falls short" of what LeClair requires, arguing that there was no evidence demonstrating false accusations of sexual abuse. Citing State v. Maxwell , 172 Or. App. 142, 150, 18 P.3d 438, rev. den. , 332 Or. 559, 34 P.3d 1177 (2001), the state argued that, as to F’s father, this was "a situation where the victim denies ever making the allegations proffered by defense," so the issue is nothing more than a "factual dispute." As such, the existence of the allegations is "a collateral matter on which the admission of evidence would have unnecessarily delayed the trial and confused the issues before the jury." Id.

To provide context for the parties’ arguments, we pause to summarize LeClair . In that case, the defendant, who was charged with sex crimes related to the abuse of a seven-year-old victim, sought to introduce evidence that the victim had previously made false accusations of sexual abuse. LeClair , 83 Or. App. at 123, 730 P.2d 609. The trial court concluded that the evidence was not admissible and forbade the defendant from cross-examining the victim about the incidents on the basis "that that line of inquiry would unduly shift the focus of the trial from the incident involving [the] defendant to the other incidents." Id. at 125, 730 P.2d 609. On appeal, we concluded that "[e]vidence of previous false accusations by an alleged victim is not evidence of past sexual behavior within the meaning of the Rape Shield Law and, therefore, is not inadmissible under OEC 412." Id. at 126-27, 730 P.2d 609 (emphases in original). On the other hand, we noted that OEC 608(2) "forbids any inquiry or cross-examination into specific incidents of conduct for impeachment purposes," and that "[s]pecific instances of conduct include false statements." Id. at 127, 730 P.2d 609. We further noted that the Confrontation Clause of Article I, section 11, of the Oregon Constitution allows a defendant to impeach a witness on cross-examination, though a defendant’s confrontation right is not absolute. Id. at 128-29, 730 P.2d 609. We explained that "a court may prohibit cross-examination for impeachment purposes when the probative value of the evidence that the defendant seeks to elicit is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay." Id. at 129, 730 P.2d 609 (emphasis in original).

Accordingly, we held that, as to evidence of prior false accusations of sexual abuse,

"regardless of the prohibitions of OEC 608, the Confrontation Clause of Article I, section 11, requires that the court permit a defendant to cross-examine the complaining witness in front of the jury concerning other accusations she has made if 1) she has recanted them; 2) the defendant demonstrates to the court that those accusations were false; or 3) there is some evidence that the victim has made prior accusations that were false, unless the probative value of the evidence which the defendant seeks to elicit on the cross-examination (including the probability that false accusations were in fact made) is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay."

Id. at 129-30, 730 P.2d 609.

We turn now to the evidence presented at the pre-trial hearing that formed the basis of the trial court’s decision to preclude defendant from questioning F about prior alleged false accusations of sexual abuse. In March 2012, F’s mother reported to the Washington State Department of Social Services that F had alleged sex abuse. Defendant sought to introduce as exhibits the two resulting intake reports, which described what F’s mother said to the intake worker about the accusations. The first narrative included the following:

"[F] has reported to mother * * * and stepfather * * * that different males of all ages have had sex with her. [F] casually denies it immediately afterwards. Mother has tried to explain to [F] that these are very serious accusations but [F] thinks it is funny.

"[F] told mother that stepfather sneaks into her bedroom and has sex with her. Mother asked [F] if she just told the truth and [F] said ‘no.’

"[F] previously accused her brothers * * * of having sex with her. She also accused * * * her father of having sex with her. A short time later [F] denied these allegations were true.

"* * * * *

"Mother said these sexual abuse allegations are false but she does not know what to do. Mother is afraid that if [F] gets sexually abused in the future no one will believe it because of her history of telling lies."

The following came from the second report:

"Mother asked [F] if she knew what sex is. [F] said ‘no.’

"* * * * * "Mother took [F] to be examined by a pediatrician twice. There were no physical signs of sexual abuse. This pediatrician asked [F] if these allegations are true. [F] shrugged her shoulders and said ‘no.’ "

Defendant’s other proposed exhibit was a report prepared by a defense investigator documenting a witness interview with stepfather on May 22, 2015. Referring to the alleged accusations from when F was five years old, the report recites the following:

"[F’s stepfather] states that he explained [to a detective and a child services officer] * * * that [F] had been caught watching [him] and [F’s mother] having sex and figured that this is where she came up with the story. He denied having any sexual contact with [F]."

At the hearing on the motion, the parties stipulated that the brothers would indicate that they had neither sexually penetrated F nor abused her in any way. F’s father and stepfather each testified that they had never had any sexual contact with F. F’s stepfather testified on direct examination that he heard F tell the detective that the stepfather had not had sexual contact with her. On cross-examination, however, he testified that he "d[id]n’t believe" that he had heard F say that he "didn’t sexually abuse her." Rather, it was F’s mother who told him.

On direct examination, F’s mother testified that she recalled that F told her that the allegations were not true, that she "believe[d that F] told the doctor that no, [the accusations] weren’t [true]," and that she had "explain[ed] to [F] that these were serious accusations." When the mother was asked what she had previously said to the detective involved in the investigation of defendant’s case, this colloquy followed:

"[DEFENSE COUNSEL]: Did you indicate to [the detective] that * * * ‘[F] said her dad raped her. Then she said [her stepfather] raped her. Then she said it was each one of her brothers.’

"[MOTHER]: You

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